Executive Privilege and the Miers Nomination

The White House says Harriet Miers reached her decision to withdraw as a candidate for Supreme Court because of a conflict over executive privilege. Senators of both parties had been pushing the Bush administration to release documents related to her role as White House counsel.

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President Bush says he reluctantly accepts Harriet Miers' decision to withdraw her nomination to the US Supreme Court. The decision came earlier this morning, three weeks after the president announced her nomination from the Oval Office.

President GEORGE W. BUSH: I believe that senators of both parties will find that Harriet Miers' talent, experience and judicial philosophy make her a superb choice to safeguard the constitutional liberties and equality of all Americans.

MONTAGNE: Today the White House says Harriet Miers reached her decision because of a conflict over executive privilege. Senators of both parties had been pushing the Bush administration to release documents related to her role as White House counsel. Joining me now is NPR White House correspondent David Greene.

And, David, President Bush said that releasing documents containing Miers' legal advice would, and I'm quoting here, "undermine a president's ability to receive candid counsel." Does the president's justification mean that no White House counsel can ever be nominated?

DAVID GREENE reporting:

Well, it's an interesting question, Renee, that--the president was very, very firm on that principle. A few days ago he said that he was not going to cross that line, that answering questions about the private advice that advisers give to him would make it impossible for advisers in the future, under his administration and in future presidencies, to give candid advice and not worry about what the public repercussions would be. So on its face, that argument would seem to make it pretty tough for him to reach back now and grab someone else from inside his White House and nominate that person.

MONTAGNE: And Harriet Miers, what happens to her now? Does she go back to being White House counsel?

GREENE: Well, we don't know yet. The White House did say a couple of days ago that she never formally left her job as White House counsel, so that certainly seems to leave the door open. The president is always very loyal to the people who are loyal to him whenever he can be, and as long as he doesn't feel that there would be political consequences, you could see him at least making the offer to Miers to take the job back.

Now she was a private person, she was rarely seen in public. Now her name has been very much out there. It's been a tough few weeks for her, so whether or not she wants to be back in a high-profile job, time will tell.

MONTAGNE: And does any of this affect the attorney general, Alberto Gonzales, or could affect him? He's long been said to be on the president's short list. Does his position at the White House disqualify him for the Supreme Court?

GREENE: Well, we were talking about this principle of attorney-client privilege that the president said was so important, and Alberto Gonzales used to have the job that Miers does, White House counsel, so again, it would make it tough for the president to pick Gonzales. The only thing that you could theoretically see as a possibility, the president had said that one thing that made the Miers nomination different was that she didn't have any experience as a judge, so that made senators a little more hungry for any information they could get, which included her time at the White House. Gonzales does have more of a record and service on the bench, and so maybe the White House thinking would be there's more for senators to dig into and they wouldn't aggressively go after his time at the White House as much. But again, the president laid down that law, and it would be tough to back away.

MONTAGNE: Now theoretically, President Bush could use his next Supreme Court nomination to regain some political footing. Does this announcement help or hurt the president, do you think?

GREENE: It's an extraordinary moment at the White House, and it's not clear what will happen. They were looking for some sort of distraction that they could be more in control of, and we do know that in the next coming days the president will be in control of making a new nomination to the US Supreme Court.

MONTAGNE: Thank you very much, NPR White House correspondent David Greene. And again, Harriet Miers has withdrawn her nomination to the Supreme Court.

This is NPR News.

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